The Supreme Court today decided Samia v. United States, and in doing so cut back substantially on the rule of Bruton v. United States (1968) and essentially nullified Gray v. Maryland (1998) a Bruton follow-on. A premise underlying all these cases is that a confession of one defendant cannot be introduced against another defendant. That has been clear since the Case of Thomas Tong, 84 Eng. Rep. 1061 (1662), though before Crawford some courts tended to forget it. In Bruton two defendants were tried jointly, the confession was introduced, and the trial court instructed the jury not to use it against the non-confessing defendant. That was not good enough, said the Supreme Court; though usually we assume that a jury will follow instructions, in a case such as this that is too dangerous an assumption to make. Thus, if the confession is to be introduced against the defendant who made it, the other defendant must have a different trier of fact -- perhaps, though not inevitably, at a separate trial. Gray was similar to Bruton but instead of the confession being read unaltered the word "deleted" was inserted. Not good enough, said the Court, given that the jury would easily understand the reference. Samia is similar except that the confession was recounted by referring to an "other person" rather than identifying Samia by name. The Court, in a 6-3 decision per Justice Thomas, held that this was acceptable.
Justice Thomas's opinion spent a great deal of space demonstrating that, during an earlier historical period courts found it perfectly acceptable to rely on limiting instructions when a confession was admissible against one defendant but not another. Justice Barrett, concurring in part and concurring int he judgment, did not join this part of the opinion; she pointed out that Justice Thomas's sources did not reach back to the framing era, and they did not, at least not explicitly, consider constitutional considerations. Justice Thomas spent much less energy attempting to distinguish Gray. Justice Kagan, joined by Justices Sotomayor and Jackson in dissent, found the attempted distinctions inexplicable and unprincipled. She also pointed out that there was now no need for the majority to overrule Bruton because the prosecution could always replace the name of the non-confessing defendant with words such as "a woman" and avoid the problem.
Justice Jackson also dissented separately. She pointed out that the majority skipped over the fact of a Confrontation Clause violation and treated Bruton improperly as an exception to a general rule rather than as an ordinary implementation of the law of the Confrontation Clause. I think she may be overstating hte difference of opinion. Although Justice Thomas's opinion is less clear on the point than it might have been, I believe that it takes as a premise that if the confession had been introduced against Samia, a non-confessing defendant, without a limiting instruction, there would have been a Confrontation Clause violation. So the issue is one of remedy. The majority here thinks that the limiting instruction – which does in effect render the evidence inadmissible against the non-confessing defendant – suffices. The minority disagrees. I do not take anything in the majority opinion as suggesting that a statement presents a confrontation problem only if it identifies the defendant against whom it is offered. I would not be surprised if some prosecutors try to make the opinion say something like that, but it doesn't.
